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54012 Federal Register/Vol. 76, No. 168/Tuesday, August 30, 2011/Rules and Regulations that precedent in Nash-Finch Co., the Supreme Court concluded that the Board also had implied authority ‘‘to enjoin state action where [the Board’s] federal power preempts the field.’ 404 U.S. at 144. Like these judicially recognized powers, the notice-posting requirement that is the subject of this rulemaking has not been specifically provided for by Congress. But the cited cases demonstrate that Congress need not expressly list a power for the Board to legitimately exercise it. Indeed, the notice-posting requirement is not even an implied power of the Board in the same sense as those previously mentioned. Rather, it is the product of the Board’s exercise of express rulemaking authority and inherent gap- filling authority, both of which have been delegated to the Board by Congress. 2. The First Amendment and Section 8(c) of the NLRA A handful of commenters argue that the notice-posting requirement violates the First Amendment to the Constitution, Section 8(c) of the NLRA, or both. For example, the Center on National Labor Policy, Inc. maintains that “compelling an employer to post its property with a Notice that asserts the statutory ‘rights’ and employer obligations, runs counter to constitutional views long protected by the Supreme Court.’ The Center also argues that the “proposed poster would impede the employer’s statutory right to express itself on its own property.” Along these same lines, the National Right to Work Legal Defense Foundation, Inc. and others on whose behalf it writes contend that ‘‘the Board’s proposal for forced speech favoring unionization directly conflicts with the First Amendment and longstanding federal labor policy under Section 8(c) that employers and unions should be able to choose themselves what to say about unionization.” These concerns were echoed by the National Association of Wholesaler-Distributors. In addition, two attorneys affiliated with Pilchak Cohen & Tice, P.C., which they describe as ‘a management-side labor and employment law firm,” argue that the notice-posting requirement “tramples upon employers’ Free Speech rights by regulating the content of information that employers are required to tell employees and by compelling them to post the Notice containing pro- union NLRA rights, when it is almost assuredly not the employers’ prerogative to do so.”’ The Independent Association of Bakers goes further and characterizes the regulation as an unconstitutional “eae order’ that “prohibits the employer from telling the truth about the impact a union might pose to his business.” The Board rejects these arguments. As an initial matter, requiring a notice of employee rights to be posted does not violate the First Amendment, which protects the freedom of speech. Indeed, this rule does not involve employer speech at all. The government, not the employer, will produce and supply posters informing employees of their legal rights. The government has sole responsibility for the content of those posters, and the poster explicitly states that it is an “official Government Notice’’; nothing in the poster is attributed to the employer. In fact, an employer has no obligation beyond putting up this government poster. These same considerations were present in Lake Butler Apparel Co. v. Secretary of Labor, 519 F.2d 84, 89 (5th Cir. 1975), where the Fifth Circuit rejected as “nonsensical” an employer’s First Amendment challenge to the Occupational Safety and Health Act requirement that it post an ‘‘information sign’’ similar to the one at issue here. As in Lake Butler, an employer subject to the Board’s rule retains the right to “differ with the wisdom of * * * this requirement even to the point * * * of challenging its validity. * * * But the First Amendment which gives him the full right to contest validity to the bitter end cannot justify his refusal to post a notice * * * thought to be essential.” Id.; see also Stockwell Mfg. Co. v. Usery, 536 F.2d 1306, 1309-10 (10th Cir. 1976) (dicta) (rejecting a constitutional challenge to a requirement that an employer post a copy of an OSHA citation). But even if the Board’s notice-posting requirement is construed to compel employer speech, the Supreme Court has recognized that governments have “substantial leeway in determining appropriate information disclosure requirements for business corporations.” Pac. Gas & Elec. Co. v. Pub. Utils. Comm’n, 475 U.S. 1, 15 n.12 (1985). This discretion is particularly wide when the government requires information disclosures relevant to the employment relationship. Thus, as the D.C. Circuit has observed, ‘‘an employer’s right to silence is sharply constrained in the labor context, and leaves it subject to a variety of burdens to post notices of rights and risks.” UAW-Labor Employment & Training Corp. v. Chao, 325 F.3d 360, 365 (D.C. Cir. 2003) (UAW v. Chao) (citing Lake Butler, 519 F.2d at 89). Accordingly, the Board’s notice-posting requirement is not susceptible to a First Amendment challenge.*# The Board is equally satisfied that the tule does not violate NLRA Section 8(c), 29 U.S.C. 158(c), which creates a safe harbor for noncoercive speech in the unfair labor practice area. Specifically, Section 8(c) shields from unfair labor practice liability “[t]he expressing of any views, argument or opinion,” provided that “such expression contains no threat of reprisal or force or promise of benefit.” Id. (emphasis added). A government poster containing accurate, factual information about employees’ legal rights “merely states what the law requires.” Lake Butler, 519 F.2d at 89. For that reason, “[t]he posting of the notice does not by any stretch of the imagination reflect one way or the other on the views of the employer.” Id.4° 44 The decision of the intermediate state court in Smith v. Fair Employment & Housing Commission, 30 Cal. Rptr. 2d 395 (Cal. Ct. App. 1994), rev’d on other grounds, 913 P.2d 909 (Cal. 1996), lends no support to arguments challenging these regulations on First Amendment grounds. There, the California Court of Appeal held that a landlord’s right to freedom of speech was “‘implicate[d],” id. at 401— 02, by a state fair housing agency’s remedial order requiring her to sign, post, and distribute notices “setting out the provisions of [the fair housing statute], the outcome of th[e] case, and the statement that [she] practices equal housing opportunity.” 913 P.2d at 914. The Smith case is not persuasive here because the notice at issue in Smith would not merely have set forth the rights of prospective buyers or renters but also would have contained a signed statement from the landlord which would have given the false appearance that she agreed with the state’s fair housing “concepts and rules,” despite her religious beliefs to the contrary. 30 Cal. Rptr. 2d at 401. That feature of the case has no parallel here. Here, by contrast, employers are not required to sign the informational notice, and as noted, nothing in the poster is attributed to them. The Board further notes that the Smith decision is not authoritative because it was superseded by the California Supreme Court’s grant of review in that case. See 913 P.2d at 916 n.*. 45 The Employers Association of New Jersey is therefore off the mark when it argues that the notice-posting requirement is preempted under the principles of Lodge 76, International Ass’n of Machinists & Aerospace Workers v. Wisconsin Employment Relations Commission, 427 U.S. 132 (1976), as an attempt to regulate employer speech “about unionization and collective bargaining.” As explained above, the employer’s choice whether to express its own views, arguments, or opinions is wholly unaffected by a requirement to post a government-provided notice summarizing what the law requires. Indeed, consistent with both Machinists and the policy of Section 8(c) “‘to encourage free debate on issues dividing labor and management,” Brown, 554 U.S. at 67 (quoting Linn v. United Plant Guard Workers, Local 114, 383 U.S. 53, 62 (1966)), employers remain free under this rule—as they have in the past—to express noncoercive views regarding the exercise of these rights as well as others. See, e.g., United Techs. Corp., 274 N.L.R.B. 609, 609, 618-20, 624-26 (1985), enforced sub nom. NLRB v. Pratt & Whitney Air Craft Div.v., United Techs. Corp., 789 F.2d 121 (2d Cir. 1986); Warrensburg Bd. & Paper Corp., 143 N.L.R.B. 398, 398-99 (1963), enforced, 340 F.2d 920 (2d Cir. 1965). For this reason, the Board finds it unnecessary to adopt the proposal made by the HOUSE_OVERSIGHT_022283